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Traditional negotiation and litigation

The traditional approach remains the most common. Usually both parties appoint a Family Lawyer and negotiations begin in correspondence. Both parties are expected to provide full and frank disclosure of their financial circumstances, usually by completing a Form E and by producing for example 12 months Bank statements, P60’s, wage slips, Pension details, business accounts etc. Attempts are then made to negotiate through solicitors, taking into account issues a court would consider. If that fails, then a court application generally follows.

What factors will the court take into consideration

  1. Each party’s income, earning capacity, property and other financial resources
  2. Each party’s needs and obligations
  3. The age of the parties and the duration of the marriage
  4. The standard of living enjoyed by the parties during the marriage
  5. Any physical or mental disability of either party
  6. Any specific contributions made by either party
  7. Each party’s conduct within the financial proceedings
  8. The value to each of the parties of any benefit that party will lose the chance of acquiring, eg pension.

The court will consider each application on a case by case basis and may place more emphasis on one or more factors when determining the final settlement.

Valuations

Where possible, valuations of assets should be agreed. If they cannot be agreed, the court may order a valuation.

Procedure

If an agreement can be reached once disclosure has been exchanged voluntarily and if Divorce proceedings have been issued, then a Consent Order can be filed with the court. If Divorce proceedings have not been started, then an agreement can be recorded in a Separation Agreement.

If agreement cannot be reached, an application can be made to the Court.  However you must first attend a MIAM (Mediation Information and Assessment meeting) with a Mediator.  

Next, Court application known as “Form A” is filed at court.

The court will issue a timetable providing dates by which both parties must file financial statements known as Form E’s and preliminary documents prior to the first hearing known as a “First Appointment”

The First Appointment is a case management hearing at which the court will consider:-

  • what further disclosure is required by the parties
  • if the value of property/assets is disputed.  If so, the court will direct the parties to agree a valuation and/or appoint valuers, usually at joint expense. 
  • whether there are any expert reports required such as a company valuation or pension report.

The application will be adjourned for further disclosure and for valuations and reports to be prepared.

Once any outstanding disclosure has been produced and valuations and reports have been obtained, the parties will be expected to put forward proposals for settlement.

If an agreement is reached, a Consent Order can be filed with the court. If the Order is approved then the court proceedings will be concluded.

Second hearing FDR -Financial Dispute Resolution hearing

If an agreement cannot be reached, then the case moves on to the Financial Dispute Resolution Hearing. The purpose of the FDR hearing is to try to negotiate an agreement on the day. The court will be appraised of the offers that have been exchanged and the court may make observations about what Order may be made at a final hearing.

Neither party is bound to accept the Judge’s views.  However, if an agreement is reached, a Consent Order can be approved by the Judge and the court proceedings will end. 

Final Hearing

If an agreement has still not been reached, then the case moves on to the final hearing.  The purpose of the final hearing will be for the court to make a decision about the distribution of income and assets. Both parties will be expected to give evidence and the Judge will decide issues and impose a decision upon the parties.

Prior to the hearing both parties will be expected to provide up to date disclosure of their financial circumstances.

Swati Somaiya
E-Mail swati.somaiya@spearingwaite.com
Direct Dial 0116 242 1255
Mobile 07739 507 532
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Dawn Salter
E-Mail dawn.salter@spearingwaite.com
Direct Dial 0116 242 1297
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